A court has set aside Sidney’s decision to deny what would have been the community’s first recreational cannabis store for reasons of “illegality,” according to the lawyer representing the business.
John Alexander, representing Happy Buddha Cannabis, said the municipality’s policy requiring transparent windows along Beacon Avenue directly contradicted provincial regulations from the Liquor Control and Licensing Branch (LCRB) that at the time required opaque windows.
Sidney council had denied plans by Cindy Pendergast and Brad Styles to open Happy Buddha Cannabis in the 2400 block of Beacon Avenue by a vote of 4-3, with opponents pointing to the municipality’s requirement for transparent windows on Beacon Avenue among other reasons.
Several weeks later, the business started legal proceedings against the municipality, in part on the basis that the municipality cannot require the business to do something that is against provincial law.
“A municipal government cannot require what a provincial government prohibits,” said Alexander at the time. “Provincial law trumps local municipal law.”
Justice Jennifer Power of the British Columbia Supreme Court appears to have agreed with this argument in Wednesday’s ruling.
“While the judge hasn’t made any specific orders about it, the judge said that the consideration, whether it is in the policy or not, should not conflict with the provincial regulation,” said Alexander.
“She didn’t go so far as to strike out the policy, but she certainly made the comment that it was a direct contradiction, and when they [council] reconsider it [the application], they can’t reconsider it in a way that continues that direct contradiction.”
Ironies of ironies: the provincial government dropped the requirement for opaque windows last month, well before the ruling. In other words, the previous conflict between municipal and provincial regulations has disappeared, leaving the application in compliance with both.
Alexander also said that the judgment found that the municipality failed to follow process in hearing the application. “They didn’t conduct the public consultation properly and they did not report to the province the information,” he said.
“They were supposed to have gathered the views of the residents, provided those views to the province and also confirm what they did in order to gather those views. This is purely my own speculation, but the Town council would have been hard pressed to say that there were residents who were opposed to this. My understanding is nobody was opposed.”
While the proposal generated some voices of opposition at the time of council’s decision, public submissions largely ran in favour of the application.
The ruling means that council must reconsider its response to the province and “to do so properly, taking into account the view of residents,” said Alexander, adding that the court did not set a deadline.
Finally, the court also ordered Sidney to pay the business’ court fees. “It could be $10,000, $12,000, $14,000, something around there,” said Alexander.
The timing of Wednesday’s ruling raises questions about why the case continued in light of the recent regulatory changes and conciliatory signals from the business following the provincial announcement.
“I don’t really know the answer to that other than to say that the lawyers were in the process of talking and the judge yesterday [Tuesday] basically sent a note to us, saying ‘I’m releasing my reasons tomorrow [Wednesday] morning.’ In fairness to the discussions between the lawyers, the judge had obviously made up her mind, made a decision and didn’t think that this recent provincial change really affected her decision. So she just decided to release it.”
This timing suggests that Sidney’s apparent failure to consult rather than the regulatory issues around windows might have played a bigger role in the ruling.
Randy Humble, Sidney’s chief administrative officer, said in a note to the Peninsula News Review that the municipality is currently reviewing the details of the decision after being made aware of it.
“Given the recent significant changes to the LCRB’s regulations regarding the elimination of the requirement for opaque windows, staff recently received a revised referral from the LCRB based upon a revised window design from Happy Buddha,” he said. “Prior to the judge’s decision, staff intended to bring the revised referral forward to council for review and consideration as soon as practicable at a future council meeting.”
Pendergast welcomed the court’s decision in promising that the business would soon re-submit its application, while also lowering expectations.
“A massive thank you to our Judge Power, our families and friends and the wonderful folks from this community who have reached out to us and supported us in one of the most challenging times of our lives,” she said. “And we’re not there yet. We still need council approval to proceed and we will be asking folks to let Sidney know they support us.”
Alexander, for his part, predicts that this decision will be a “shot in the arm” for local retail along Beacon Avenue.
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